After several stalled attempts, New York State became the 16th state to legalize recreational cannabis (marijuana) use.  This occurred on March 31, 2021, when Governor Andrew Cuomo signed the “Marijuana Regulation and Taxation Act” (S.854-A/A.1248-A) that was passed by the legislature the night before.  The stated intent of the law is to regulate, control, and tax cannabis in order to generate significant new revenue, increase employment, create new industries and strengthen New York’s agriculture sector.  The legislation creates a Cannabis Control Board that will be responsible for regulating New York’s cannabis industry.

Under the new law, it is legal for individuals 21 and older to purchase and possess up to three ounces of cannabis.  When at their private residence, individuals are legally permitted to possess up to five pounds of the drug.  Among other things, the law requires a State-issued license for the cultivation, processing, distribution and delivery of cannabis, and the licensure of premises for retail sales or on-site consumption.  The law takes effect immediately, but certain portions of the law will not become effective until the Cannabis Control Board is created and promulgates regulations.

While local municipalities cannot ban possession of cannabis, the law allows them to prohibit retail sales and on-site consumption within their borders by opting out of the law on or before December 31, 2021.  Almost immediately after the law was enacted, a number of Long Island town supervisors and village mayors said they would ban retail sales and on-site consumption of marijuana, and in doing so would forego receiving a portion of the $350 million in annual revenue that State officials estimate will be generated by legalizing recreational cannabis use.  Cannabis sales will be taxed at about 13% and local municipalities stand to receive 3% of that revenue.

On the day after the Governor signed the law, ABC7NY reported that the mayors of the villages of Rockville Centre, Freeport, Atlantic Beach and Island Park will opt out.  Since then, other supervisors and mayors have said that their communities will also opt out.  The Town of Hempstead released a statement saying that “[t]he town board is united in its opposition to the sale of recreational marijuana and also stands firmly against ‘on premises’ consumption of marijuana at facilities within the Town of Hempstead.”  Babylon’s town supervisor, Rich Schaffer, originally called for all towns and villages on Long Island to opt out of the law and pass legislation banning the sale of marijuana.  However, his positioned softened when it became evident that some communities were unlikely to do so.  His efforts to achieve an Island-wide ban were also undermined by an announcement by the Shinnecock Indian Nation that they would be selling recreational marijuana in Southampton.

A municipality may exercise its right to opt of the portion of the legislation that permits retail sales and on-site consumption sites prior to December 31, 2021, by adopting a local law, subject to a permissive referendum, requesting the Cannabis Control Board prohibit the issuance of licenses for retail sales and on-site consumption within their jurisdictional boundaries.  Residents opposed to such law can request that the issue be placed on a ballot for a vote by the local electorate by collecting signatures from at least 5% of the total votes cast in the municipality for governor in the last election.  While municipalities have until December 31, 2021 to opt out, they may opt back in at any time.

Many people have strong opinions about recreational marijuana use.  And, the varied reactions by local elected officials are reflective of the differing societal views on this issue.  However, given the widespread budgetary concerns facing local governments today, and the law’s potential to create a windfall of new revenue from recreational marijuana sales, local officials would be wise to set aside their own personal views and instead gauge the sentiment of their constituents prior to opting out.

In Matter of Sid Jacobson Jewish Community Ctr., Inc. v. Zoning Bd. of Appeals of the Inc. Vil. of Brookville, the Second Department reviewed a local zoning board’s denial of an applicant’s request to expand and improve the facilities on its property.  The applicant/petitioner, Sid Jacobson Jewish Community Center, Inc. (“Petitioner”), is a “nonprofit nonsectarian Jewish organization” that uses its property to operate a day school and camp.  Petitioner’s property is located in a district zoned predominately for single-family houses and “certain conditional uses.”

In 2014, Petitioner applied to the Zoning Board of Appeals of the Incorporated Village of Brookville (the “ZBA”) for a conditional use permit allowing certain proposed improvements on its property.  Over the next couple years, five public hearings on the application were held.  In January, 2017, the ZBA ultimately denied Petitioner’s application, but did not provide a basis for doing so.  It was not until after Petitioner commenced an Article 78 proceeding challenging the denial that the ZBA issued a decision explaining its reasoning.

In its decision, the ZBA explained that Petitioner’s use of the property as a day school and camp did not constitute a conditional use under the applicable zoning code, and further concluded that Petitioner’s proposal would negatively impact the surrounding neighborhood.  Petitioner subsequently amended its Article 78 Petition to address the ZBA’s decision, but the proceeding was dismissed nonetheless.  Petitioner appealed.

The Second Department ultimately affirmed that dismissal, concluding that there existed a rational basis to support the ZBA’s determination.  The use of Petitioner’s property as a day school and camp was not religious or educational in nature.  The mere fact that Petitioner is a religious organization does not change that conclusion.  “[T]he activities and programs offered at the Day School and Camp are standard recreational activities that are offered at any summer camp.”  Further, the activities offered by the camp “are predominately athletic and recreational,” rather than academic or religious, nor is the staff employed by the camp qualified to offer academic or educational instruction.  Accordingly, Petitioner’s proposed use was not entitled to deferential zoning treatment, and thus, the ZBA’s denial of Petitioner’s application was proper.

Absent local legislation to the contrary, town and village zoning boards act solely as appellate bodies authorized to hear and decide appeals taken from decisions by local zoning enforcement officials (ZEOs) (see Town Law § 267-A[4] [McKinney’s]; Village Law § 7-712-A[4] [McKinney’s]). The most common example of such appeals occurs when an applicant property-owner or developer applies to their local zoning board for a variance following a ZEO’s determination that the applicant’s project does not conform to the local zoning code.

But what happens if a neighbor disagrees with the local ZEO’s assessment and believes that greater or different relief from the zoning code is required for the appellant’s project? Can the neighbor simply air their objections on the record at the zoning board’s hearing on the application? No, they must independently appeal the ZEO’s determination as a party “aggrieved” by the decision (id.). The danger of failing to do so is highlighted in the Second Department’s recent decision in Capetola v Town of Riverhead et al, — NYS3d —, 2021 WL 900930 (March 10, 2021).

In Capetola, Edward Hocker (“Hocker”), the owner of a vacant parcel of land in the Town of Riverhead, applied to the Town’s building department for a permit to construct a single-family residence on the site. The building inspector (i.e. ZEO) denied Hocker’s application on the grounds that the project did not conform to the applicable standards for impervious surface coverage, front yard setback, side yard setback, and combined side yard setbacks. Hocker appealed the building inspector’s determination by application to the Respondent Town of Riverhead Zoning Board of Appeals (ZBA) seeking four area variances, one for each of the standards identified in the building inspector’s denial.

At the public hearing on Hocker’s application, neighbors of the property appeared in opposition to the application arguing, among other things, that a lot size variance was needed because the lot did not meet the minimum dimensional requirements of the zoning code. The ZBA rejected the neighbor’s objections concerning the need for the lot size variance and granted Hocker’s application in its entirety. The neighbors sued arguing, among other things, that it was improper for the ZBA not to consider the need for the additional variance. The Supreme Court, and the Second Department on appeal, disagreed.

Unless otherwise provided for by local law or ordinance, a zoning board of appeals’ jurisdiction is appellate only, and in the absence of an administrative determination to review, a zoning board of appeals is without power to grant a variance or render a de novo determination with respect to an issue not determined by an administrative official. Here, the only issues to be decided by the ZBA were with respect to the four variances sought by Hocker in his application to the ZBA, upon his appeal from the determination of the building inspector identifying those four requirements of the relevant building code. There was no determination of an administrative official regarding the need for a lot size area variance for the ZBA to review, and there was no appeal by the petitioners to the ZBA. Since the ZBA was without jurisdiction to decide the need for a lot size variance, any error by the ZBA in determining that issue does not require remittal of this matter to the ZBA for a new determination (2021 WL 900930 at *2 [internal citations omitted] [emphasis added]).

Thus, having failed to challenge the underlying ZEO decision which led to Hocker’s application to the ZBA, his neighbors could not use the purported need for an additional variance as grounds for denial of Hocker’s application. Whether or not they were right is effectively irrelevant.

Surprise! During the summer of Covid-19, the Town Board of Oyster Bay passed Local Law 4 of 2020, amending Chapter 246, the Town’s zoning code, to eliminate apartments over stores or offices as a permitted principal use in the Nonresidence District designated as Neighborhood Business (“NB”), Central Business (“CB”), and General Business (“GB”).

This town-wide code amendment prohibiting apartments over stores has received little coverage, based in part by the Governor’s Executive Orders and emergency restrictions, which eliminated the normal public hearing processes.  In fact, as of this writing, there has been no press release or other public announcement of this code amendment, but for the mandatory public notice of the hearing.

Apartments over stores and businesses were an “as-of-right” right uses prior to this zoning code amendment.  The rationale for this extensive code amendment is not clear; however, statements made on the record by Town officials indicated a need to “assist” downtowns across Oyster Bay while at the same time balancing it with input from locally interested parties.

The intent of this local law creates more oversight of apartment applications over stores throughout the town.  Absent express permission from the Town Board, apartments over stores and business are no longer permitted under Oyster Bay’s Zoning Code.  More public participation both for and against apartments appears to be guaranteed in Oyster Bay.

As in much of Nassau County, rental apartments in Oyster Bay are in relative short supply compared to demand, yet mixed-use buildings in the right locations have generally been considered highly profitable.  This code amendment promises to affect many property owners in ways both large and small.  Unfortunately, the extent of these impacts will not be known for several years.

So if you didn’t know about the code change, now you know.

In the Matter of Parsome, LLC v. Zoning Board of Appeals of the Village of East Hampton, decided February 10, 2021, the petitioner appealed the denial of an Article 78 Petition by the Supreme Court, Suffolk County. The Appellate Division, Second Department, upheld the Supreme Court’s determination. Specifically, petitioner purchased property in the manufacturing zoning district in the Village of East Hampton in 2004. The property was improved with a 6,600 square foot commercial building and a parking lot with 23 parking spaces. At the time the building was constructed in 1988, it complied with the parking requirements. In 1995 the Village increased the parking requirements affecting the property changing it from requiring 1 space per every 300 square foot of building floor space to 1 space for every 200 square foot of building floor space as well as 2 spaces for every unit within a building. If the use of a building was “intensified” pursuant to East Hampton Village Code §278-6(A), then the building had to be brought up to current parking standards under the code.

In 2016, the Village notified the property owner that it was in violation of the parking regulations since the building had six office units but was only permitted to have four according to the certificate of occupancy for the site. In response, petitioner applied to the Zoning Board of Appeals (“ZBA”) to retain the additional two offices without having to increase its parking. The Zoning Board of Appeals determined that the creation of additional office units constituted an intensification of its use, and concluded that the property owner needed an additional 20 parking spaces in order to comply with the current code. As a result, the ZBA found that the requested variance was substantial and further found that the building experienced parking shortages (along with the zoning district having parking shortages), had no access to public parking and the parking shortage created a detriment to neighborhood. Based on the foregoing, the ZBA denied the application.

The applicant brought an Article 78 Petition against the Zoning Board of Appeals and the Supreme Court, noting the broad discretion that local zoning boards enjoy, denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Courts determination to the Appellate Division, Second Department.

The Appellate Division noted that a “zoning board’s interpretation of its zoning ordinance is entitled to great deference and will not be overturned be the courts unless unreasonable and irrational.” The Court found that the ZBA’s interpretation of the code that the addition of two office uses to the building constituted an intensification and as such the building had to comply with the updated parking requirements was reasonable. The Court also found that the ZBA property rejected petitioner’s argument that it was only required to comply with the code section adding two additional parking spaces per unit. Ultimately the ZBA correctly found that the building required 43 parking spaces and thus the variance sought to waive 20 parking spaces was substantial. Moreover the Court held that the ZBA’s conclusion that the variance would add to parking problems at the building was legitimate and had a rational basis. Finally, the Court noted that petitioner was presumed to have known about the applicable zoning regulations when it purchased the property rendering any hardship self-created.

Accordingly, the Court held the Supreme Court properly denied the petition and dismissed the proceeding.

The tide seems to have turned against the Town and the Trustees of the Freeholders and Commonalty of the Town of East Hampton (Trustees) in a recent decision by the Second Department.  In Seaview at Amagansett v, Trustees, the Appellate Division reversed much of a trial court’s 2016 decision and seemed to erode the Trustees’ ability to issue beach permits for 4X4 vehicles to park on an Amagansett beach.

Colliding in a perfect storm are the private property rights of several homeowners association, a 1991 Trustees beach permit regulation and generations of prior uses on approximately 22 acres of beachfront property consisting of 4,000 feet along the Atlantic Ocean in Amagansett commonly known as “Truck Beach.”

In an action pursuant to RPAPL Article 15, the plaintiffs, a group of Amagensett property owners, claimed unencumbered ownership to Truck Beach based on a 1882 deed from the Trustees to Arthur W. Benson (Benson Deed) conveying fee title to approximately 1,000 acres of prime real estate, which included the subject property.  The Benson Deed contained the following reservation:

And also except and reserved to the inhabitants of the Town of East Hampton the right to land fish boats and netts [sic] to spread the netts [sic] on the adjacent sands and care for the fish and material as has been customary heretofore on the South Shore of the Town lying Westerly of these conveyed premises.
The extent and nature of that “fishing” use are at the heart of coveted beach rights running easterly from Napeague Lane to the westerly border of Napeague State Park.  In this case, the Trustees assert jurisdiction over all the “beach” lands of Truck Beach landward of the high tide line.  The East Hampton Town Code defines “beach” to include lands above the mean high water mark as well as the more traditional foreshore land that lies between the high water mark and low water mark.
In 2016, the Supreme Court rejected certain homeowners’ claims and decided in favor of the Trustees’ public ownership of Truck Beach.  In stark contrast to the trial decision, the Appellate Division found that the disputed area landward of the highwater mark was held in fee simple absolute by the homeowners association with a reservation for the inhabitants of East Hampton to only land fishing boats and spread fish nets on Truck Beach.
Finding the reservation contained in the Benson Deed akin to a public use easement, the Appellate Division did not expand the public’s use beyond fishing and fishing related purposes.  As a result, the Trustees are now prohibited from issuing permits for vehicles to park and drive on Truck Beach.
Despite suffering this recent loss, the Trustees have vowed to take any and all necessary steps to regain control of Truck Beach, either by winning the appeal at the Court of Appeals, or proceeding with the ultimate taking of the disputed area through eminent domain.  It remains to be seen which option will result in the retaking of Truck Beach, but one thing is clear, a line has been drawn in the sand of Truck Beach and the tide always returns.

In an effort to stimulate the revitalization of abandoned, vacant or underutilized commercial shopping centers, bowling alleys and health club properties, the Brookhaven Town Board recently voted to adopt a new zoning classification, known as the Commercial Redevelopment District (“CRD”).  In the past year, there were a number of retail and commercial recreational businesses in the Town that were so severely impacted by the effects of the COVID-19 pandemic that they closed permanently.  Even prior to the pandemic, many brick and mortar retail stores have gone out of business because they were unable to compete with the growth of online shopping and e-commerce platforms.  The result is that there are many large vacant buildings and tenant spaces scattered throughout the Town.

The CRD regulations recognize that the more rigid conventional zoning regulations that currently exist do not allow owners of vacant and underutilized commercial real estate to repurpose and redevelop their properties in a way that is both economically beneficial and socially desirable.  The new regulations, therefore, are designed to create planning and zoning flexibility that will allow for developments that are more creative and imaginative in their land use and design, and evoke a unique sense of place.  Properties that are redeveloped under the new CRD regulations must be civic-oriented, pedestrian-friendly, economically vibrant and environmentally sustainable.

The CRD is not a fixed zoning district that applies to a particular geographic area of the Town.  Instead, it is a “floating zone” that can be applied to properties located anywhere in the Town, provided that they are eligible for inclusion in the CRD.  Eligible properties are those that are over five acres in size, and either currently improved with an abandoned, vacant, or underutilized commercial shopping center, bowling alley and health club or previously improved with buildings used for these purposes that have been demolished and removed.

The land uses permitted in the CRD are extremely broad.  The zone permits all uses otherwise allowable in the Town’s zoning ordinance, except for uses that are exclusively permitted in the Town’s J5, L1, L2, K, MHC and PC districts and restaurants with drive-through facilities.  It also permits a combination of land uses, known as mixed-use developments, which are in high-demand on Long Island as young professionals and families seek more affordable housing options in more urban settings that offer proximity to dining, shopping, work, public transportation and other features that improve the quality of their lifestyles.

The CRD includes relaxed dimensional requirements that provide developers with a larger building envelope within which to construct new buildings.  New developments are required to be set back 25 feet from adjacent residential uses, but can be constructed to the property line when adjacent to non-residential development.  The maximum permitted height in the CRD is 50 feet.  To encourage a mix of commercial uses, the regulations prohibit single-tenant commercial buildings that are 40,000 square feet or greater in size.  There are also a number of design regulations incorporated into the new zoning law to ensure that the developments are pedestrian-oriented and bicycle-friendly, and provide civic spaces and recreational areas for residents, employees and visitors to gather for social activities, recreation and visual enjoyment.

Residential developments in the CRD are permitted a maximum base density of 10 units per acre, but density increases may be granted up to 27 units per acre if the site or the proposed development meets certain criteria.  For instance, the regulations allow the base density to be increased by an additional 7 units if the site is located within 2,000 feet of an active Long Island Railroad station and by an additional 4 units if the site can utilize an existing public or private sewage treatment plant.  Other density increases are authorized for sites that have been specifically targeted for redevelopment in an adopted community-based hamlet plan or other planning document, include buildings that will be constructed with superior materials or incorporate green energy technologies, or if 20% of the total housing units will be designed and constructed for persons with special needs.  A minimum of 10% of all residential units shall be maintained as affordable and/or workforce housing units, in accordance with Town Code Chapter 85, Article XIII.

Since there is an expectation that developers who obtain a change of zone to CRD will follow through with their redevelopment plans, the new regulations provide for a forfeiture of residential and nonresidential density if the developer does not advance its project in a timely manner.  For instance, a developer shall forfeit one residential unit or 500 square feet of non-residential development per acre if it fails to make the change of zone effective within one year of the date of the change of zone grant, obtain site plan approval from the Planning Board within two years of the effective date of the change of zone or obtain a building permit and commence substantial construction within three years of the effective date of the change of zone.  A similar forfeiture shall result for every additional six months beyond the specified time periods.  Upon request of the developer, the Town Board may grant a six-month extension of the time periods, which will avoid the law’s automatic forfeiture provisions.

The new CRD regulations received wide-spread support from both building industry professionals and civic leaders.  At the December 3, 2020 public hearing, Mitch Pally, the Chief Executive Officer of the Long Island Builders Institute, expressed his organization’s strong support for the new regulations, which he characterized as “groundbreaking on Long Island” and “tremendously beneficial to the building community of Long Island.”  Jennifer Dzvonar, the president of the Port Jefferson Station/Terryville Chamber of Commerce, advised the Town Board that the chamber was “100% in support of this proposed code” because it “will encourage commercial property owners to update and revitalize their establishments” and create downtown-type areas that will entice additional local businesses.

Owners of vacant or underutilized commercial properties in the Town of Brookhaven that are eligible for inclusion into the CRD should give serious consideration to utilizing this progressive approach to redevelopment which can be a win-win for both developers and the communities in which these properties are located.

In Matter of Bernstein v Putnam Val. Zoning Bd. of Appeals, property owners sought to construct a hot tub on their residential property, located in a protected area known as a wetland buffer.  The Wetlands Inspector for the Town of Putnam Valley (the “Town”) granted the owners a permit waiver, and shortly thereafter, the Town’s Zoning Board of Appeals (the “ZBA”) granted their application for area variances, allowing them to begin construction of the hot tub.  However, prior to construction, neighboring property owners (“Petitioners”) commenced an Article 78 proceeding challenging the determinations of the Town’s Wetlands Inspector and ZBA.

The proceeding was promptly transferred to the Appellate Division, Second Department “pursuant to CPLR 7804(g), on the ground that the petition raised a substantial evidence issue.”  The Second Department held that the lower court’s decision to transfer the matter was erroneous for procedural reasons, but nonetheless chose to decide the case on the merits in the interest of judicial economy.

As the basis for their challenge, Petitioners alleged that the permit waiver violated certain provisions of the Town code governing “freshwater wetlands, watercourses, and waterbodies.”  However, in issuing the waiver, the Wetlands Inspector considered various factors such as drainage issues and the impacts the proposed hot tub would have on the surrounding area.  In light of such considerations, the waiver was subject to certain conditions, including, inter alia, that the hot tub would not discharge into the surrounding wetlands or wetland buffer area.  With such conditions in place, the Wetlands Inspector ultimately determined that any such negative impacts were insignificant.

In an Article 78 proceeding, the Court’s review is limited to whether the underlying administrative determination was “illegal, arbitrary and capricious, or an abuse of discretion.”  In deciding the property owners’ application for area variances, the ZBA engaged in a balancing test pursuant to Town Law § 267-B(3), weighing the proposal’s benefits to the applicants against its detriments on the surrounding community.  Specifically, the ZBA considered “whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created.”

Ultimately, the Second Department ruled in favor of the Town and property owners, holding that the Wetlands Inspector properly granted the permit waiver, and the ZBA appropriately considered the property owners’ area variance application by engaging in the necessary balancing test and considering the required factors.

Takeaway:  This case serves as a good reminder of a reviewing court’s limited authority in hearing Article 78 appeals.  Because local zoning boards are afforded broad discretion in rendering determinations on applications before them, a subsequent Article 78 proceeding is not intended to substitute a judge’s opinion for that of the board.  Rather, the court is simply tasked with ensuring that the board engaged in the appropriate legal process in rendering a rationally based determination.  That is precisely what the Court concluded here.

With all the recent snow Long Island has seen, and with more in the forecast, snow plows, sanders, and other emergency response vehicles have been a common sight. The time is right, therefore, for a quick word on the heightened burden plaintiffs face when suing a local government for auto accidents involving one of these vehicles while engaged in emergency operations.

In general, motorists on a public road are held to an ordinary standard of care when driving their vehicles and are obligated to observe the rules of the road. When an accident occurs, an ordinary negligence standard is applied, which asks whether the “accident occur[ed] because [the defendant] failed to see that which through the proper use of his or her senses he or she should have seen” (Katanov v Cty. of Nassau, 91 AD3d 723, 725 [2d Dept 2012]). However, where the defendant is the operator of a government emergency response vehicle in the course of responding to an emergency, the standard has the potential to shift significantly in the government’s favor. The Second Department’s recent decision in Kaffash v Village of Great Neck Estates, ____ AD3d ____, (2d Dept Docket No 2019-11574, Jan 13, 2021) provides a concise explanation of this doctrine, which is based in Section 1103 of the NYS Vehicle & Traffic Law (VTL).

One winter evening, an employee of the Village of Great Neck Estates was out driving a Village-owned snow plow following a recent snowstorm. While operating the plow in reverse, the rear bumper of the vehicle came into contact with the plaintiff who was walking in the middle of the street. The plaintiff sued the employee and the Village for personal injuries.

Before trial, the Village made a motion seeking summary judgment in its favor on the issue of liability. The lower court denied the motion, resulting in appeal to the Appellate Division, Second Department. The Appellate Court reversed, and granted the defendants’ motion. The Court wrote:

A snowplow operator ‘actually engaged in work on a highway’ is exempt from the rules of the road and may be held liable only for damages caused by an act done in ‘reckless disregard for the safety of others’” (Ventura v County of Nassau, 175 AD3d 620, 621, quoting Vehicle and Traffic Law § 1103[b]; see Joya v Baratta, 164 AD3d 772, 772-773; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705, 706). Reckless disregard requires more than a momentary lapse in judgment (see Saarinen v Kerr, 84 NY2d 494, 502; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 706). “This requires a showing that the operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” (Joya v Baratta, 164 AD3d at 773 [internal quotation marks omitted]; see Bliss v State of New York, 95 NY2d 911, 913; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 706).

Here, the defendants established their prima facie entitlement to judgment as a matter of law. In support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff and Oviedo-Mejia. Oviedo-Mejia testified that he was traveling in reverse at a speed of five to seven miles per hour with the lights and beeping alert of the snowplow vehicle activated. Oviedo-Mejia testified that he kept looking in the mirrors as the snowplow vehicle was moving in reverse, but he did not see the plaintiff prior to the alleged impact. Under the circumstances, the defendants demonstrated, prima facie, that Oviedo-Mejia did not act with reckless disregard for the safety of others (see Harris v Hanssen, 161 AD3d 1531, 1533; Roberts v Anderson, 133 AD3d 1384, 1385; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d at 707).

Ordinarily, driving a vehicle in reverse of a public road might have been sufficient to establish liability for negligence. However, the fact that the Village employee was engaged in storm response at the time the accident occurred meant that the lower standard of care applied to his activities. Accordingly, on the facts before it, the Court could not say the employee was “reckless” in his conduct. Therefore, the Court was compelled to rule in the defendants’ favor.

In contrast, the court in Piro v Village of Lake George, 299 AD2d 689 (3d Dept 2002), declined to apply the lower standard of care pursuant to VTL § 1103 to an accident involving a village official operating a village-owned snow plow. In that case, the defendant was the village’s Acting Superintendent of Highways. After completing snow-removal work in the village, the Superintendent drove the plow outside the village to his private residence where he plowed his driveway and street. As he then backed the plow into his driveway, the vehicle collided with the plaintiff’s, injuring him. On appeal, the Third Department affirmed the lower court’s finding that the ordinary negligence standard applied to the Superintendent at the time of the accident. The court opined that in plowing his own driveway and a street outside the village, over which the village had no jurisdiction, the Superintendent’s status was “no different from any private snow removal contractor plowing a client’s driveway” (299 AD2d at 690).

As the Practice Commentaries to VTL § 1103 explain “[the statute] evinces the intent of the Legislature to create a broad exemption from the rules of the road for vehicles engaged in construction, maintenance, or repair of highways. Rather than the ordinary negligence standard, drivers engaged in such activities are held to a lesser standard of care: “reckless disregard for the safety of others.” There are two initial questions, therefore. Was the driver engaged in a covered activity and, second, was that activity taking place on a highway? If so, the lesser standard applies” (Cunningham, Practice Commentary, McKinney’s Cons Laws of NY, 2018 Electronic Update, Vehicle and Traffic Law § 1103).

A copy of the Second Department’s Decision & Order can be found here: Kaffash Decision.

Last May, in Commissioner of the State of New York Department of Transportation, et al. v Polite, Index No. 610010/2019, the Suffolk County Supreme Court denied the State’s application for a preliminary injunction to enjoin the completion, maintenance and operation of two sixty-foot tall electronic billboard-monuments (“Project”) on opposite sides of State Route 27 a.k.a. Sunrise Highway. The Project is owned by the Shinnecock Indian Nation (“Nation”). The first billboard-monument situated on the southern side of Route 27 was completed and has been operational, but construction to complete the second billboard-monument situated on the northern side of Route 27  began just the other week.

The State reportedly served a stop work order for the latest construction,  claiming the construction lacks permits, and threatened to issue daily fines of $1,000 for violations of the order. The Nation reportedly issued its own work permit for the construction. Additionally, sign placement along highways that does not comply with federal regulations may jeopardize federal funding to the State for roadways.

There is a dispute about whether the Project is located within the Nation or on its land, or whether the Project is located within the State’s right-of-way along Route 27. This matter presents an interesting issue of the competing Federal, State and Nation jurisdictions.

As the winter wanes and the warmer weather welcomes visitors to the East End, these issues will likely heat-up.